Ladd & Tilton Bank v. Lewis A. Hicks Co.

The writ of error in this case brings up for review a judgment in an action at law tried to the court *311 without a jury; the judgment being based upon a general finding upon the evidence in favor of the defendant in the court below, the defendant in error here. A jury was dispensed with by consent of the parties expressed orally in open court, but no stipulation in writing evidencing the waiver was had or filed; and the assignments of error are all based upon rulings had at the trial.

[1 ] In this state of the record the defendant in error makes the point that the errors assigned may not competently be inquired into by this court; and we are of opinion that this objection must prevail, at least as to all but a single assignment to be noticed later. The objection is based upon the limitations which circumscribe these courts in trials of issues of fact in actions at law; the statute requiring that they be tried by a jury (section 648, R. S. [U. S. Comp. St. 1913, § 1584J), unless the jury be waived by a stipulation in writing (section 649 [section 1587]), when the facts may be tried by the court and its rulings reviewed as provided in section 700 (section 1668). These provisions…

(concurring). Prior to the act of Congress of March 3, 1865, now embodied in the sections of the Revised Statutes cited in the opinion of the court, the submission of issues of fact, in an action at law, to the court instead of to a jury for trial precluded a review- by writ of error of alleged errors occurring in the course of such trial. The reasons therefor were clearly stated by Mr. Justice Miller in the case of Kearney v. Case, 12 Wall. 275 , 20 L. Ed. 395 . To provide for such a review, the act of March 3, 1865, authorized the parties to make in writing, and file with the clerk of the court, a stipulation waiving a jury, compliance with which prescribed steps, the Supreme Court held in the case cited, enables the defeated party to have errors alleged to have been committed on such a trial reviewed by writ of error; but, in the absence of those steps, it was there distinctly adjudged that no such review can be had, and that in such cases the judgment must be affirmed; the court having jurisdiction of the parties and the subject-matter.

I also concur in the holding that the pleadings in the present case are not insufficient to support the judgment.